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DISABILITY AND HEALTH LAWS

Author: Sameer Afzal Ansari, III year of B.A.,LL.B. from Guru Gobind Singh Indraprastha University


Introduction

India’s healthcare sector has already been exposed to the ongoing and unending pandemic. What may have been sufficient till now has proved to be insufficient to keep the cases of coronavirus and flu-related diseases at bay. Although it is justifiable that the pandemic was unexpected, Indian medical facilities have still not proven to be efficient enough to track the effects and results of the infected. Moreover, India has reported an alarming surge in cases of clinical anxiety, depression and those physically disabled have been forsaken and left to their own devices in their very town house. It is not unknown that Indian society has a negative outlook towardmental and physical disability.


Many sections of the society still consider talking about mental disability as a taboo and physicaldisability is considered pitiful. That’s why when a man/ woman with an amputated leg or arm is able to set some kind of national example or world record, people are amazed while it is something any physically challenged can work toward with support and encouragement rather than pity. Keeping aside the social stigmas of disability and poor health standards, the Indian disability and health laws have evolved to encompass the rights and fair treatment of people whose health in manner has been compromised. But the question of to what extent they protect and what more needs to be done to ensure the protection remains open-ended.


Global Take on Disability and Health Care

The tWorld tHealth tOrganization tspeaks tof tdisability tas tany tkind tof timpairment twhich tlimits tone’s tphysical tand tmental tactivity tlike tdown tsyndrome tor tcerebral tpalsy. tIt tis tan tinteraction tbetween tpersons twith ta thealth tcondition tand tnegative tenvironment tusually tmental tor tpersonal. t tAbout t15% tof tthe tglobal tpopulation thas tsome tkind tof tdisability, tof tvarying tdegrees, tand tare tmore tlikely tto tnot tget tany taccess tto thealth tcare tservices,tliving ttheir tlives twith tunmet thealthcare tneeds. tThere tare ttwo tmain treasons twhy tthere thas tbeen ta thike tin tdisability tamong tpeople-

  • Increasing tpopulation tageing

  • Increase tin tchronic tdiseases


The tstatistics twent ton tto tstate tthat tnearly t35-50 tper tcent tof tpeople tin developed tnations tand t76-85 tpercent tof tpeople tin tdeveloping tnations had unmet thealth tcare tneeds tin t2017. tThis twas teven tafter tArticle t25 tof tthe United tNations tConvention ton tthe tRights tof tPersons twith tDisabilities reinforcing tthe tneed tto tmake thealth tcare taccessible tto tthe tdisabled without tdiscrimination. t


The treasons twhy tsuch ta thuge tgap tbetween trealization tand tdemand tfor health tcare tservices texists tare tas tfollows-

  • Unaffordable tcosts tof tservices t

  • Lack tof tavailability tof tservices

  • Physical tbarriers tlike tnarrow thallways, tuneven tdistribution tof hospitals, tinadequate tbathroom tfacilities

  • Inadequate tknowledge tby thealth tcare tproviders t


The tlack tof thealthcare thas taffected tthe tdisabled ton ta tdifferent tlevel, tthe biggest trisk tbeing tthem tdeveloping tsecondary thealth tproblems, thealth risk behaviours tlike tsmoking tor tsubstance tabuse tand tpremature tdeaths. tTo combat tthese temerging thealthcare-related tissues, tthere twere tfew tsolutions devices tby tvarious tcountries-

  • Passing tappropriate tlegislation tand tintroducing tpolicies tbinding hospitals tto tthe tclauses

  • Making thealth tcare tservices tavailable tthrough tdoor-to-door tfacilities

  • Increasing tthe tinvestment tfrom tdomestic tand tforeign tsources tin tthe health tcare tsector

  • Focussing ton teducating tand ttraining tthe thuman tresource tin ttheir fields tof tspecialization

  • Carrying tout tmedical tresearches tto tstudy tareas twhich tare tlacking and tdemands teffectiveness tand tefficiency


The tWorld tHealth tOrganization tgave tsome tsuggestions tso tthat tthe tglobal scenario tof tpoor tfeedback tfrom tfields tof tdisability tand thealth tcan tbe improved-

  • The tdisabled tshould tbe tincluded tin tdischarging thealth tcare tservices

  • Awareness tdrives tshould tbe tcarried tout tso tthat tpeople tare sensitised to tthe tneeds tof tthe tdisabled tand tthe tdisabled tare tthemselves taware of ttheir thealth tconditions

  • The tdata twhich tis tcollected tregarding tdisability-related tissues tshould be tdisseminated t

  • Hands-on tstrategies tshould tbe tincluded tin thospital tguidelines tfor dealing twith tphysically tand tchallenged tpatients


India’s Deficient Healthcare Industry

India thas ta thumongous thealthcare tsystem tto tcater tto tits tvast tpopulation but tthe tdisparity tbetween tthe tservices tin tthe trural tand tthe turban tareas has tbecome ta tcause tof tconcern, tnot tonly ton ta tnational tlevel tbut thas also tattracted tthe tglobal tattention tfor treformation tand trestructuring. tThe difference tis tnot tonly tin tthe tgeographical tdifference, tbut tit talso texists tin the tservices toffered tby tthe tpublic tdomain tand tthe tprivate tdomain. Nonetheless, tthe tsole treason tbehind tIndia tbeing tconsidered tas ta tmedical tourist tdestination tis tbecause tof tits trelatively tlow tmedical tcost tand thigh-quality tprivate thospitals. t


Even tafter tthe tprivate thealth tsector tbeing ttop-notch, twhich tleads tto tthe increasing tgap tin tthe trural tand turban tservice tis tthe tuneven tdistribution of thealthcare tfacilities tand texorbitant tprice tfor ttreatment. tAll tof tthis tis ta direct tconsequence tof tlarge tscale tpoverty tand tilliteracy trate. tThe tWHO reported tin t2018 tthat tmore tthan tfifty tper tcent tregions tof tUttar tPradesh and tBihar thave tvery tlow trates, tquality tand taccess tto thealth tservices, tand the tpoor tstatistics tof tthe ttwo tstates toverpower tthe tbrilliant performancetof tall tothers. tThe tcities twhich thave texcellent tfeedback twhen it tcomes tto tthe tmedical tsector tare tNew tDelhi, tMumbai, tLucknow tand Kolkata. tThis tis tironic tbecause tin tthe tNational tHealth tPolicy twhich twas endorsed tby tthe tParliament tin tthe tyear t1983 taimed tat tuniversal thealth coverage tby t2000, tbut tthat thasn’t thappened ttill t2020. t


However, tthe tfunny tpart tis tthat tmore tIndians tdie tof tpoor thealth tcare quality tthan tlack tof taccess tto tit. tEspecially, twhen tthe tproblem tis tnot with tthe tbody tbut tthe tbrain. tThat’s twhat tmakes tthe tissue tof tIndia’s inexpensive tand trural tservices tworrisome. tWhile tthose twho tare privileged have taccess tto tboth tphysical tand tmental tcare tfacilities, tthe tpoor tcannot afford tthe turban tand tprivate tservices tand tthe tservices tavailable tto tthem does tnot tguarantee ttheir tsafety. tThen twhere tdoes tthat tleave tthem? tThis is twhere tthe tlaw tcomes tinto tthe tpicture. t


According tto tArticle t21 tof tthe tIndian tConstitution tcomes tinto tthe picture. Article t21 tguarantees tone tof this/her tright tto tpersonal tliberty tand tthat includes tthe tinherent tright tto thighest tattainable tstandards tof tphysical and mental thealth. tThe tJustice tSunanda tBhandare tv. tUnion tof tIndia tcase stressed tthe trights tof tthe tdisabled talso tincluded ttheir trights tto appropriate thealth tcare tfacilities. tDespite tthat, twe tsaw tthe treport tthat nearly t16 tlakh tpeople tdied tdue tto ttreatable tdiseases twhich twere inadequately ttreated. tAdditional t8 tlakh tpeople tdie tbecause tof underutilisation tof tfunds tand tresources treserved tfor tthis tsector. t


The tpandemic thas tput tthe talready tcrumbling tIndian thealth tindustry under ttremendous tpressure tto tprovide tfor tthe tthousands tof tnew tcases which tcome tup tevery tday. tIf twe tare tto tbelieve tthe texperts, tthen tthe pandemic twill tinversely tand tindirectly tequip tIndia tto tbecome tamply even, tintegrated tand torganised.

t t

India’s Legal Standpoint

Indian tlegal tsystem tis tknown tfor tits t‘welfare’ tnature tbecause tof tits foundation tbeing tthe tprinciples tof tjustice, tequity tand tgood tconscience. The tIndian tconstitution thas tthree tpillars twhich, tif trighteously tapplied, work tfor tthe tpeople tin tterms tof ttheir tright tto taccess tand tmake tgood tof all tthe tmedical tfacilities tavailable-equality, tjustice tand tliberty. tEquality tin terms tof tequal topportunities tbeing tprovided tfor taccessing trequired facilities tand tjustice tto tget tthe tlegal tremedy twhen tthey tare twrongly denied tthese tfacilities. tAnd tliberty tfor tstanding tup tfor tone’s town twell-being tand tsecurity. tAlthough tthe tstatistics tspeak tnegatively tof tIndia’s health tindustry twhen tit tcomes tto tdealing twith tphysical tand tmental health, tthe tIndian tlaws twhich thave tbeen tenacted tto tmake tup tfor tthe health tdisparity-


  • Right to Healthcare under Article 21: tArticle t21 tspeaks tthat tno individual tshould tbe tdeprived tof this tpersonal tliberty tand thas tthe right tto tprotect this/her tlife. tAccess tto tmedical tfacilities tis timportant for tone tto tmaintain this/her tbody tand tkeep tthem tfunctioning. Therefore, tthe tright tto thealthcare tis tan tintegral tpart tof tArticle t21 and tanyone tviolating tthat tcan tbe tpunished.


  • Laws for Disability and protecting the disabled

  1. Rehabilitation tCouncil tof tIndia tAct, t1992

  2. Persons twith tDisabilities t(Equal tOpportunities, tprotection tof tRight and tFull tParticipation) tAct, t1995

  3. National tTrust tFor tWelfare tof tPersons twith tAutism, tCerebral tPalsy, Mental tRetardation tand tMultiple tDisabilities tAct, t1999

  • The National Medical Commission Act, 2019: tThis tAct tstresses tthe tneed tto teducate tthose tpursuing tthe tmedical tprofession tand tthe tequal taccess tof thighly ttrained tprofessional tmedical tpractitioners tto tpromote tcommunity thealth tperspective tthrough tequitable tand tuniversal tservices tat tan taffordable trate tall tacross tthe tcountry.

  • Indian Medical Council (Professional Conduct, Etiquette and Ethics) (Amendment) Regulations, 2020 twith trespect tto tTelemedicine guidelines: tThis tAmendment twas tspecifically tmade tto tmeet tthe door-to-door tmedical tservices tavailable tat treasonably tpriced tservice charges tthrough tchannels tsupervised tby ta tRegistered tMedical Practitioner. tIt twas talso tto tmeet tthe tmedical tneeds tin tremotely located tregions tthrough tproper tchains tof ttransportation. t t


These tlaws tmay thave tbeen twell-intentioned tand tgood treasoned tbut tthey have tleft tmuch tto tbe tasked tfor. tThe tloopholes tand tlack tof implementation ton tthe tbasic tlevels thave tactually tbroken toff tthe tchain tto create ta tsuccessfully tfunctioning thealth tsystem.


Why is India still lacking?

The most prominent reasons why healthcare and related laws lack is because of the following reasons-

  • Private hospitals provide much better services but charge high prices, the poor fall into a debt trap whichdecreases their standards of living from bad to worse. Thus, they no longer care for ‘good’ facilities, but cheaper facilities even if they provide inadequate and temporary relief. Those who are unable to pay off their loans fall into a debt trap and are punished for any default in payment.

  • We hear how the Surrogacy (Regulation) Bill, 2019 has banned commercial surrogacy to prevent exploitation of surrogate mothers and safety of women, but there are still many clinics in India which continue to advertise and practice commercial surrogacy through unlawful means and surrogate mothers, who are mostly poverty-stricken, also agree because of the hefty pay they get to feed their families. However, it has become a common occurrence for womenwho become surrogate mothers to not only agree for such future contractual obligation but also push other women in need of quick, easy money to take up the task. However, the money may be “easy” but the toll it takes on their health in the later run wrings them dry of their savings running after doctors with uncertain medical guarantees.

  • Even after the Rights Of Persons With Disabilities Act, 2016, we saw some improvement in the mental health of India but the act has a vague stance for families with mentally sick members because their mental sickness does not fall under the purview of 21 kinds of disabilities listed under the Act. The Act also does not provide anything regarding the need for ‘care workers’ who are more like professional babysitters for the mentally ‘sick’ not disabled.

  • In most Acts and laws for the disabled, one is only punished for intimidating or mocking a disabled if recordedin the ‘public view’. Remember that many of the mentally disabled and sick do not have any understanding of their surroundings, then how are they supposed to report if someone is mocking or intimidating them inside their houses where no one other than the bullying party resides? This has also rendered punitive aspects of various Acts and laws ineffective to be strict and fruitful.


Conclusion

When it comes to mental health, India has continued to overlook the imminent signs that a significant number of its young and potential human resource struggles with various kinds of mental health challenges. Only in recent years has the awareness that seeing a counsellor does not mean a person is ‘mad’per se has given educational institutions the confidence in providing counselling services to their students. People have become more sensitive to the need to be positive before physically disabled but the greater part of the society really does little to inspire the disabled to work in social circles. The same is the condition of Indian laws regarding health. They have been made but most of them do not get a follow-up in the ground levels. Then does that mean they are useless? No, of course not. What we need is an awareness that there are laws and rights to protect one’s dignity and health. The sole reason why the United States is considerably better than India and other Southeast Asian countries is because of the thigh levels of awareness Americans have about their rights and what they are entitled to. If the same kind of legal health awareness is made available to others through means of focussing on literacy, the Indian disability and health laws will also see the light of day.